A Controversial New Law for Terror Suspects
The new Military Commissions Act raises basic constitutional issues as well as questions about U.S. compliance with the Geneva Conventions. Two student activities and two readings provide information about the act and critics' responses to it.
By Alan Shapiro
To the Teacher:
The Military Commissions Act of 2006 (MCA) is a much-discussed and highly controversial piece of legislation that raises basic constitutional issues as well as questions about U.S. compliance with the Geneva Conventions.
The two student activities and two readings below provide information about the act and critics' responses to it. They offer opportunities for students to broaden their understanding of the Constitution and the Geneva Conventions and to grapple with ambiguities and hard questions.
What rights should terror suspect have?
After students complete the following questionnaire, have them discuss their responses. Do terror suspects deserve the same rights that are guaranteed to Americans? Why or why not? These questions are central to a consideration of the Military Commissions Act.
Do you think that a captured terror suspect should have the following rights? A "+" means you do; a "-" means you do not; a "?" means you are uncertain.
1. The right to appear before a judge to determine if his imprisonment is legal.
2. The right to be presumed innocent until proven guilty beyond a reasonable doubt.
3. The right to know the charges against him.
4. The right to examine all evidence against him.
5. The right not to have evidence used against him that was extracted through torture.
6. The right not to be required to testify against himself.
7. The right not to have hearsay evidence used against him (that is, evidence provided by a witness who testifies, not to what he knows personally but to what someone else told him or her).
8. The right to cross-examine those who testify against him.
9. The right not to be imprisoned indefinitely without trial.
10. The right to appeal the court's decision to a higher court.
Tabulate student responses. On what items is there agreement? Why? What are the disagreements? Why? What are the uncertainties? Why? After students have completed and discussed the reading, the teacher might use this same questionnaire to determine how, if at all, student views have changed.
Questions, Answers and Critical Views, Part One
What kind of trial should a suspected terrorist have? Of the approximately 450 prisoners at Guantanamo, the U.S. has identified 10 for prosecution and added 14 other recently transferred suspects to that detention center. President Bush's decision is that they should be tried by military commissions, which have been used four times in U.S. historyóduring the American Revolution, the War with Mexico, the Civil War and World War II.
In September 2006, Congress passed the controversial Military Commissions Act (MCA), which details the rules for the trials. The Act was approved by party-line votes of 253-168 in the House and 65-34 in the Senate. Supporters were mostly Republicans, opponents mostly Democrats.
The controversy is about these rules and whether they violate the Constitution and the Geneva Conventions. Four Geneva Conventions were created by representatives of the U.S. and other nations in 1949 to establish rules for war that most countries accept. Supporters of the MCA maintain that foreign terrorist suspects should not necessarily be allowed to claim constitutional rights and privileges guaranteed to American citizens. They think that some Geneva Convention rules are not appropriate for the "war on terror" and might make it more difficult. They say that granting some of these rights and rules to terror suspects might endanger Americans. For them the MCA gives the president powers he needs to fight that war.
Critics of the MCA maintain that it violates the Constitution and the Geneva Conventions and grants unsupervised powers to the president in a government that it supposed to be based on laws, not on trust.
Who is to be tried by the military commissions?
Only foreigners. The president labeled those fighting the U.S. in the "war on terror" as "illegal enemy combatants" because, he said, they are a unique enemy. They do not wear military uniforms and are not soldiers fighting for their nation. So when they are captured, they do not deserve the rights of prisoners of war guaranteed under international agreements like the Geneva Conventions. The president can also apply the term "unlawful enemy combatant" to legal U.S. residents, but they would have to receive regular criminal trials in U.S. courts.
The MCA defines an "illegal enemy combatant" as anyone who "has been determined to be an enemy combatant by a competent tribunal" established by the president. An enemy combatant could be someone who has fought the U.S., but could also be anyone who has "purposely and materially supported hostilities against the United States."
Critics argue that use of the term "illegal enemy combatants" violates the Geneva Conventions, which refer only to "prisoners of war," who should have certain rights. Worse yet, they say, the law allows the president to choose anyone he wants to determine who is "illegal."
The definition contains no objective criteria and is vague, say critics. For example, suppose U.S. authorities determined that an Islamic charity used contributions to finance terrorists. Should a person who contributed to the charity but did not know of this use of the money be charged with "materially" supporting hostilities against the U.S.? Critics also point out that there is nothing in the MCA to prevent the president from continuing to imprison people in secret CIA locations, another violation of the Geneva Conventions.
Can an "unlawful enemy combatant" challenge his imprisonment?
No. For the first time in U.S. history Congress singled out non-citizens as having no right to a writ of habeas corpus and no right of appeal to any U.S. court. The president may choose indefinite detention for such people. The MCA also prohibits the Supreme Court from reviewing the U.S. government's compliance with the Geneva Conventions. It denies detainees the right to challenge their status in court by invoking that international agreement. It rejects the Supreme Court ruling earlier this year that Common Article III of the Geneva Conventions applies "as a matter of treaty obligation to the conflict against Al Qaeda." Common Article III is so named because the same article appears in each of the four Conventions.
Supporters of the MCA want to deny these rights to foreign terror suspects to prevent them from using U.S. legal processes to complicate and delay the swift justice they deserve.
But critics say that indefinite detention violates the 14th Amendment and that denial of the writ violates Article 1, Section 9 of the Constitution. They predict that the Supreme Court will declare the denial of habeas corpus unconstitutional. Already the Center for Constitutional Rights has filed suit in a federal court challenging this aspect of the MCA.
What rights does an "unlawful enemy combatant" have?
He has the right to know the charges against him; to be provided with military lawyers and to hire civilian lawyers if they are eligible to have access to classified information; to be presumed innocent until proven guilty beyond a reasonable doubt; not to be required to testify against himself; to cross examine witnesses against him; to respond to all evidence against him but, for reasons of national security, not to examine all evidence; to exclude evidence obtained by torture; to a full and fair trial.
Supporters argue that the law provides terror suspects with most of the rights American citizens have. Critics say that in denying the detainee the rights to habeas corpus and to examine all evidence against him, a fair trial is impossible.
1. What questions do students have on this reading? How might they be answered?
2. Why did President Bush decide to call detainees "illegal enemy combatants" rather than prisoners of war? What do you think of this decision and why? What do you think of the MCA definition and why?
3. What is habeas corpus? Why is it regarded as so important? Why do you suppose that Congress decided to withhold habeas corpus from terror suspects? Do you agree with this decision? Why or why not?
4. Should terror suspects have the right to examine all evidence against them? Why do you suppose that Congress decided to withhold this right? Do you agree with this decision? Why or why not?
5. The MCA gives the president the power to select a "competent tribunal" to determine if someone is an "illegal enemy combatant." No one is authorized to review his choices or how a tribunal is operating. What is the danger of such a procedure? Is this danger necessary? Why or why not?
Questionnaire on Defining Torture
To the Teacher
Talking with students about such issues as "coerced evidence" and abusive interrogation techniques that some regard as torture can be difficultóespecially since naming specific techniques is sometimes unavoidable. The questionnaire below offers a possible introduction to part two of the reading, depending on whether your judge it to be appropriate for your class.
There has been much discussion about how to define such words as "torture." Write your own definition in not more than two sentences. The techniques below have all been used by U.S. interrogators on terrorist suspects. (See "Torture and War Crimes: The U.S. Record in Documents," which is available on this website.) Which of these techniques, if any, would your definition of torture include? (I) Which would it not include? (NI) About which are you uncertain (U)?
1. Preventing a prisoner from sleeping
2. Waterboarding a prisoner (that is, fastening him to an inclined plank with his head at the lower end and pouring water into his nose so that he thinks he is drowning)
3. Subjecting a naked prisoner to extreme cold and pouring ice water on him
4. Sodomizing a prisoner with a chemical light
5. Threatening a prisoner with large attack dogs
6. Threatening a prisoner with immediate execution
7. Placing a lit cigarette in the ear of a prisoner
8. Chaining a prisoner in the fetal position for 24 hours without food, water or a toilet facility
9. Forcing a prisoner to crawl on his stomach while guards spit and urinate on him
10. Beating a prisoner's head against doors and walls
11. Stripping a prisoner to his underwear, shackling him on a chair and subjecting him for hours to strobe lights and screamingly loud rock and rap music played through two close loudspeakers while air-conditioning is turned up to maximum levels
12. Chaining a prisoner to the ceiling and in a sustained assault, kicking and beating him and causing death
Divide students into groups of four to six to discuss their definitions and then to consider the applicability of certain techniques. Have them determine which of the definitions they regard as best. That definition can then be reported to the class and discussed, along with others, in an effort to reach a class consensus on what students mean when they use the word "torture."
Which, if any, of the listed techniques do you regard as legitimate for use with detainees? Which as illegitimate? Why?
Questions, Answers, and Critical Views, Part Two
What interrogation techniques are allowed under the new Military Commissions Act?
The law allows hearsay and coerced evidence (that is, evidence produced from "high value" terrorist suspects by what the president calls "alternative interrogation procedures") if the judge rules the evidence is "reliable" and serves the "interests of justice." "Coercion" is defined to exempt anything done before the 2005 Detainee Treatment Act and anything else the president chooses to exempt. If, for example, he declares that electric shocks are not "cruel and inhumane," that interrogation method is permissible and could be kept secret. The prosecution may also use evidence obtained outside the U.S. without a search warrant.
The Detainee Treatment Act prohibited inhumane treatment of prisoners but when the president signed the bill into law, he declared in a "signing statement" that his first responsibility was "protecting the American people from further terrorist attacks" and that nothing should stand in the way of his meeting that responsibility. This meant that he felt free to ignore any aspect of the Detainee Treatment Act that would interfere with it.
What does the Military Commissions Act say about the Geneva Conventions?
Common Article III of the Geneva Conventions requires that those wounded on a battlefield or at sea, prisoners of war, and civilians in time of war receive humane treatment. The article prohibits "violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment."
Before the Military Commissions Act was approved by Congress, President Bush said, "The problem is that Öprovisions of Common Article III are vague and undefined and each could be interpreted in different ways by American or foreign judges." (9/6/06)
The MCA allows the president to "interpret the meaning and application" of Geneva Convention standards as applied to less severe interrogation procedures. He is allowed to authorize methods that might otherwise be seen as illegal by international courts.
The MCA does not permit the president to authorize any interrogation technique regarded as a war crime. That includes torture, cruel or inhuman treatment, murder, mutilation or maiming, serious bodily injury, sexual abuse, taking hostages, rape and biological experiments. The law comments on interrogation techniques. For example:
Torture: The interrogator must "specifically" intend "to cause pain that amounts to torture."
Cruel and Inhumane Treatment: These are acts that cause "severe or serious pain." The latter term means "bodily injury that involves extreme physical pain."
Serious mental pain: "Serious" means it must be long-lasting, not temporary.
If the government wants to protect classified information during the trial and an unclassified summary for use in the trial is not possible, the government can drop all charges and continue to detain the "unlawful enemy combatant" indefinitely.
The MCA immunizes retroactively military and CIA staff as well as top Bush administration officials from prosecution for violations of the War Crimes Act of 1995 during the "war on terror," such as prisoner torture at Abu Ghraib and Guantanamo.
What do critics say about these provisions of the MCA?
Critics charge that the MCA violates both the Constitution and the Geneva Conventions. They protest that continued detention without a trial makes a mockery of the new law. They object to allowing hearsay and coerced evidence into a trial.
They charge that the law's definition of "torture" permits torture, and that people will not receive a fair trial under the law's definitions of interrogation techniques. The interrogator can always say that his intent was to get information, not to cause pain. So no torture would be involved no matter what he did. Similarly, the president has great latitude in deciding what interrogation techniques are legal and cannot be challenged since his decisions may be kept secret.
They note that the law's definition of "cruel and inhumane treatment" says nothing, for example, about subjecting a detainee to waterboarding, prolonged and extreme cold or heat, sleep deprivation or forced stress positions for lengthy periods. All of these techniques have been used against detainees. (After World War II, a U.S. court sentenced a Japanese officer to 15 years of hard labor in prison for waterboarding an American civilian.)
As for "serious mental pain," threats to rape the detainee's wife or daughter or to kill the detainee would not qualify even though such treatment has long been recognized in international agreements as torture. Interrogators could claim they did not carry out such threats, so any "serious mental pain" would be temporary.
Critics also argue that retroactive immunization of interrogators is a violation of Article I, Section 1 of the Constitution and the Geneva Conventions. It places military, CIA, and top U.S. officials who may have committed war crimes beyond the law.
And finally, critics believe, the MCA gives the president the power to curtail sharply one of the major glories of the Constitution-its system of checks and balances.
1. What questions do students have about the reading? How might they be answered?
2. What is your opinion of each type of evidence permitted in a trial of a terrorist suspect? Why?
3. What is a "signing statement"? What is its effect on the Detainee Treatment Act? Why? Compare the president's signing statement with his public statement about torture in July 2003. Are these statements compatible?
4. The MCA prohibits the president from authorizing any interrogation technique that constitutes a war crime, such as torture, cruel and inhumane treatment, and serious mental pain. Do you agree or disagree with critics who argue that the definition of "torture" permits torture? that the definitions of "cruel and inhumane treatment" and "serious mental pain" have loopholes permitting cruel and inhumane treatment and serious mental pain? Why or why not?
5. Why should military, CIA, and top U.S. officials be exempt from acts they may have committed before enactment of the Detainee Treatment Act?
6. What is the system of "checks and balances" in the Constitution? Is it important? Why or why not? Does the MCA curtail them? If so, how? If not, why not?
Imagine yourself a detainee who has been imprisoned under the false charge of being a terrorist. Write a week-long series of diary entries on what you are experiencing, feeling, thinking. (A detailed account of such a detainee, Maher Arar, is reported in Reading 5 of "Torture and War Crimes," which is available on this website.)
Write a reflective essay in which you discuss your thoughts on this reading. You might consider such questions as the following: How do you define a fair trial? Are terror suspects entitled to such a trial? Why or why not? What rules should there be for the interrogation of terror suspects? Should they be different from rules for other kinds of criminal suspects? Why or why not?
Write an essay in which you comment on the following statement by the president in July 2003. Do you agree wholly, in part, or not at all with it and why? "The United States is committed to worldwide elimination of torture and we are leading the fight by example. Freedom from torture is an unalienable human right. Yet torture continues to be practiced around the world by rogue regimes, whose cruel methods match their determination to crush the human spirit."
Review your responses to the questionnaire. Have you changed your mind about any items? Why or why not? Discuss your answers in an essay.
For further inquiry
Have students work independently or in small groups to explore one of the subjects below. Students should provide a focus for their inquiry by asking a clear, answerable question about their subject. See "Thinking Is Questioning," which is available on this website, for details.
The use of military commissions in any one of four earlier wars
The Geneva Conventions
Presidential "signing statements"
Detainee Treatment Act
War Crimes Act
The system of checks and balances
Waterboarding (see the Washington Post, 10/5/06, for a short history)
Discuss your reaction to the Military Commissions Act in a letter to President Bush, to your senators, and/or your representative.
Are students interested in sharing their understanding of the Military Commissions Act with other students? If so, possibilities abound. Among them:
- A schoolwide assembly and forum, at which public officials and student representatives representing diverse points of view might be invited to discuss the MCA
- A newspaper or magazine with articles on various aspects of the legislation to be distributed in the school
- A video on the MCA to include samples of the legislation, official reactions as well as student reactions
This essay was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to:firstname.lastname@example.org.
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